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sufficient to constitute a cause of action under : been repeatedly held in matters of homestead section 589 of our Code of Civil Procedure right, where such rights depend upon occu(Wilson's Rev. & Ann. St. 1903, § 4787), which pancy of the premises, that temporary abprovides: "An action may be brought by sence is not an abandonment of such occuany person in possession, by himself or ten- pancy; much less could it be maintained that ant, of real property, against any person who temporary absence was an abandonment of posclaims an estate, or interest therein, adverse session to the extent of depriving a person of a to him, for the purpose of determining such right to bring an action to remove a cloud from adverse estate or interest'—the judgment of title. The Supreme Court of the state of the trial court should be affirmed, for it is Kansas has repeatedly used the word "actual" apparent that under the allegations of the in connection with possession in this class of petition the plaintiff is not entitled to injunc- cases, and in Cartwright v. McFadden, 24 tion is prayed for. The plaintiff, however, | Kan. 668, used the following language touchin addition to her prayer for injunction, asks ing the question of actual possession in deto have determined the adverse estate anal termining a right to maintain an action under interest of the defendant in and to the lands this statute: "The next question is whether mentioned and described. For the purpose of the evidence introduced sufficiently shows

the demurrer the allegations of the petition that the plaintife had the actual possession

land, or so the statute has been construed I was in possession of the lots, and he did

re admitted, which are, in substance, that the of the property. The court below held that plaintiff is the owner in fee simple of the it did. The evidence upon this subject is as land, and was in possession of the same as follows: The plaintiff, as a witness, testithe homestead of herself and minor children fied: 'I am, and at the time this action was at the time certain bankruptcy proceedings brought was, in the possession of the lots in were commenced against her husband, out of controversy. The lots lie and front on the and through which the defendant claims an west side of Buchanan street. Fifteen of interest in the land adverse to her. Whether them are south of Twelfth street, and seven she may maintain such action, under the stat- of them north of Twelfth street, and they are ute above quoted, to have determined the ad consequently not all in one block. I went verse estate of defendant, is dependent upon upon the lots and took possession. I had the question as to whether or not she was them plowed around. I had those south of in possession of the premises at the time of Twelfth street plowed around, and also those bringing this action.

north of Twelfth street. I have been upon Counsel for the defendant in error say: the lots several times, and have offered them “Section 1787 of the statute [above quoted] for sale, and have made sale of some of provides that the action may be brought them. I had a conversation with Cartwright by any person in the actual possession of the bef

before this suit was commenced. I told him by the court.” The statute does not use not dispute it. I have paid the taxes on the the language "actual possession." The lan- lots since I bought them.' And on cross-exguage is: "An action may be brought by any amination he said: 'I have put no buildings person in possession.” The word "actual” or fence on the lots. I have done nothing has been read into the statute in the deci- further in regard to getting and keeping them sion of courts, probably in each instance in than I have stated. The lots were and are view of the peculiar facts in the case under entirely unimproved, except as I have stated, consideration. If it is meant by the use of and when I went to take possession did not look the language "actual possession" that, in or- as if they had ever been improved or inclosed.' der to be in such possession of land as to be We think the foregoing evidence is sufficient enabled to maintain an action concerning the to authorize the finding made by the court title, a person must be in the present physical below that the plaintiff was in the actual possession of it, then we cannot agree with possession of the property. Gilmore v. Norsuch construction of the statute; for we think ton, 10 Kan. 192; Giles v. Ortman, 11 Kan. that in a case like the present, where a 5.9. And therefore we cannot set aside such person has a fee-simple title to real estate, finding." and has been in the occupancy thereof as a Examining the petition under consideration, homestead, and has vacated such occupancy we find the facts admitted by the demurrer for a temporary and legitimate purpose not to be: That the plaintiff is an abandoned inconsistent with a further claim of home- wife, and the head of a family of three minor stead rights thereto, and no other person has children, aged 16, 14, and 12 years, respectivereduced the premises to actual occupancy un- ly, whom she is trying to educate, to accomder an adverse claim of title, he continues in plish which she removed temporarily from the possession within the meaning of the the land in question to Oklahoma City about statute referred to, and may maintain an ac- the 10th of September, 1905, with intent to tion to quiet the title thereto. Temporary return thereto as soon as she could give them absence does not vacate possession of real the rudiments of a common school education. estate.

That she was in the occupancy of said land The word "possession" as used in the stat. as a lomestead when an involuntary proceedute is not equivalent to the word "occupancy" | ing in bankruptcy was commenced against used in the same connection, and yet it has the estate of her husband, out of and by reason of which proceedings a deed has been au- ally a true copy of the same, with all inthorized and executed to her said land to the dorsements thereon, to L. T. Pool, as local defendant, T. S. Pike, which is a cloud upon agent for the St. Louis & San Francisco R. her title. That the defendant Pike intends R. Co. Dated this 7th day of September, to reduce said lands to his possession. That 1904. M. A. O'Brien, Sheriff. W. C. Saddefendant has, in fact, no title to the land, dler, Deputy Sheriff.” The railroad company and prays to have this fact adjudicated and made a special appearance, and moved the determined, and defendant's claim under such court to quash and set aside the summons, deed canceled and held for naught. She does which motion, omitting the title of the cause, not say that she is in possession of the land, is in the words and figures following, to wit: but states the facts from which the court "Special Appearance and Motion. Comes may determine such question; and this, we now said defendant, St. Louis & San Franthink, is sufficient. And from the facts so cisco Railroad Company, a corporation, appleaded we are of the opinion that at the pearing specially and for the purpose of bringing of the action she was in such pos- this motion only, and moves the court to session as to entitle her to maintain this ac- quash and hold for naught the summons and tion, and that, therefore, the demurrer was pretended service thereof in said cause, for wrongfully sustained.

the reason that same was not issued, served, The judgment of the district court is re

and returned according to law. Flynn & versed, and said cause remanded, with in- Ames, Attorneys for Defendant.” This mostructions to vacate the judgment sustaining tion was by the court overruled and denied, the demurrer and enter an order overruling to which ruling defendant excepted. The the same. All the Justices concurring, ex- amended petition set out three causes of accept PANCOAST, J., who presided in the tion, alleging in the first the nondelivery by trial court.

the railroad company of a car of coal containing 50,000 pounds of coal, valued at $56.35,

and in the second count alleging the nonde. (17 Okl. 562)

livery by the railroad company for a car load ST. LOUIS & S. F. R. 00. v. CLARK.

of coal valued at $60, and in the third count (Supreme Court of Oklahoma. Sept. 7, 1906.)

alleging the loss by the railroad company of APPEARANCE-OBJECTIONS TO JURISDICTION- 10,230 pounds of coal of the value of $16.65. WAIVER.

To this amended petition the defendant railWhere a court acquires no jurisdiction over the person of the defendant by an attempted

road company, after the overruling of its moservice of process, and the defendant appears

tion, answered by a general denial. specially for the purpose of challenging the ju- Upon the issues thus made up, the cause risdiction of the court, and the court thereupon

came on for trial on June 9, 1905, before a overrules his motion to such jurisdiction, the defendant may save his exception, file his an

jury, and at the conclusion thereof the jury swer, and proceed to trial without waiving such returned a verdict in favor of the plaintiff error, and he may take advantage of such error (defendant in error) for the full amount on appeal to a higher court. Following Chicago Bldg. & Mfg. Co. v. Pewthers, 63 Pac. 964, 10

prayed for, to wit, $150.30. From this judgOkl. 724.

ment and the order of the court overruling [Ed. Note.-For cases in point, see vol. 3,

, .

the motion of the railroad company for a Cent. Dig. Appearance, $ 143.)

new trial, the cause comes to this court on (Syllabus by the Court.)

appeal by case-made.

The first error of the court below comError from Probate Court, Oklahoma

plained of by the plaintiff in error is that County; Wm. P. Harper, Judge.

the motion to quash the summons and servAction by R. J. Clark against the St. Louis

ice on the railroad company was improperly & San Francisco Railroad Company. Judg

overruled. There is no escaping the correctment for plaintiff, and defendant brings er

ness of this contention. In the case of Chiror. Reversed and remanded.

cago Building & Manufacturing Company v. Flynn & Ames, for plaintiff in error. J. Pewthers, 10 Okl. 724, 63 Pac. 964, it is Mosier, Dudley & McMahan, Clifton J. Pratt, held that: “Where a court has no jurisdiction and Leigh Clark, for defendant in error.


* the person of the defendant,

and the defendant appears specially for the GILLETTE, J. This action was com- purpose of challenging the attention of the menced in the probate court of Oklahoma court to such irregularity, and the court county in September, 1901, by the defendant thereupon overruled his motion to its jurisin error against the plaintiff in error for the diction, he may save his exception, file his recovery of the sum of $150.30. Summons answer, and proceed to trial without waiving was issued on the 7th day of September, such error, and he may take advantage of 1904, and was returned by the sheriff, with such error on appeal to a higher court.. the following indorsement of service there

To the same effect is Bentz v. Euon: "Territory of Oklahoma, Oklahoma Coun- banks, 32 Kan, 321, 4 Pac. 269; Dickerson ty-ss. I hereby certify that on the 7th v. Burlington & M. R. R. Co. (Kan. Sup.) day of September, 1904, I personally served 23 Pac. 936; Harkness v. Hyde, 98 U. S. 476, the within summons on the within-named de- 25 L. Ed. 237; Southern Pac. Co. v. Denton, fendants by delivering to each of them person- 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942;. Mex. Cent. Ry. Co. v. Pinkney, 149 U. S. tions is provided and required, such process 194, 13 Sup. Ct. 859, 37 L. Ed. 699; G., H. may be served on any local superintendent & San Antonio Ry. Co. v. Gonzales, 151 U. of repairs, freight agent, agent to sell tickets, S. 496, 74 Sup. Ct. 401, 38 L. Ed. 248; Se. or station keeper, or such company or corcrest v. Arnett, 5 Blackf. (Ind.) 366; Mullen poration in such county, or such process may v. N. & N. C. Canal Co. (N. C.) 19 S. E. 106; be served by leaving a copy thereof, certified Kinkade v. Myers (Or.) 21 Pac. 557; Wood- by the officer to whom the same is directed, bury V. Henningsen (Wash.) 39 Pac. 243; to be a true copy, at any depot or station of Ency. P. & P. vol. 2, p. 630, etc. The suf- such company or corporation, in such county. ficiency, therefore, of the service of the sum- with some person in charge thereof, or in the mnons in this case to give the trial court employ of such company or corporation, and jurisdiction over the railroad company, plain

such service shall be held and deemed comtiff in error, must depend entirely upon the

plete and effectual." provisions of our statute and the return of In none of these is there any provision for the officer upon the writ, above set out.

service of process upon a railroad company Section 4268 Wilson's Rev. & Ann. St. 1903,

in the manner certified to by the return of $$ 4269-4271, are all the provisions of our

the officer in this instance. The service upon statute governing the service of process upon

a corporation other than railroads must be railroads in this territory:

made upon the president, mayor, chairman of "Sec. 4268. A summons against a corpora

the board of directors, or trustees, or other tion may be served upon the president, may

chief officer, or, if its chief officer is not or, chairman of the board of directors, or

found in the county, upon its cashier, treastrustees, or other chief officer; or, if its

urer, secretary, clerk, or managing agent. chief officer is not found in the county, upon

And the return of the sheriff or other officer its cashier, treasurer, secretary, clerk or man

making the service must show why the seryaging agent; or, if none of the aforesaid

ice was not made upon one of these chief officers can be found, by a copy left at the

officers before a return showing service upon office of usual place of business of such cor

any of the other officials named can be justiporation, with the person having charge

fied or upheld. It is equally true that service thereof.

upon a railroad company must be made upon "Sec. 4269. Every railroad company

the chief officials or agents designated in sec

tions 4269-4271, and, in case service cannot corporation, and every stage company doing business in the Territory of Oklahoma, or

be made upon the chief officer or agent ap

pointed upon whom service is to be made. having agents doing business therein for

the return must show why it was not served such corporation or company, is hereby required to designate some person residing in

upon one of these, and what the official chareach county, into which its railroad line or

acter of the person was upon whom it was

served. The statute undoubtedly contemstage route may or does run, or in which its business is transacted, on whom all process

plates that an attempt must first be made and notices issued by any court of record

to obtain service upon the president, etc., or justices of the peace of such county may

or chief officer, before resorting to service be served.

upon the other class of persons, officials, or

agents. In the case of St. Louis, V. & T. H. "Sec. 4270. In every case such railroad com

R. Co. v. Dawson, 3 Ill. App. 120, the court pany or corporation, and stage company,

says: "The statute has divided the officers, shall file a certificate of the appointment

agents, and employés into two classes, and and designation of such person, in the office

service upon one class is primary to service of the clerk of the district court of the coun

upon the other, and, before service had upon ty in which such person resides; and the

those of the second class can give the court service of any process upon the person so jurisdiction, it must appear affirmatively that designated, in any civil action, shall be deem- service could not be had upon those persons ed and held to be as effectual and complete embraced in the first class, on account of as if service of such process were made up- the existence of the causes for which the on the president, or other chief officer of statute authorizes service upon the persons such corporation or stage company. Any embraced in the second class." In the case railroad company, corporation or stage com- of Union Pac. Ry. Co. v. Pillsbury, 29 Kan. pany, may revoke the appointment and desig- 652, Mr. Justice Brewer, rendering the opinnation of such person upon whom process ion, says: “The defendant in error obtained may be served, as hereinbefore provided, by judgment before a justice of the peace appointing any other person qualified as against plaintiff in error upon a bill of parabove specified, and filing a certificate of ticulars alleging default in a breach of a consuch appointment, as aforesaid; but every tract to convey certain goods. * * second or subsequent appointment shall also The return on the summons shows that it designate the person whose place is filled was served by delivering a copy thereof 'to by such appointment.

D. W. March, Agent of said U. P. R. R. Co., “Sec. 4271. If any railroad or stage com- Manhattan, Kansas.' Where this was served, pany, or corporation, fail to designate or or what kind of an agent said deferdant appoint such person, as in the preceding sec- said D. W. March was, is not shown. Such


service is insufficient. It does not show the case, they made a general appearance, that said March was president or charman and cured all defects in the service of the of the board of directors, or other chief offi- summons. They first made a special appearcer, cashier, treasurer, secretary, clerk, or ance for the purpose of testing the validity managing agent, and is therefore not good, of the service, and, their motion to set aside either under section 68, c. 80, Comp. Laws the service and to quash the summons being 1879, or section 13, c. 81, Comp. Laws 1879. overruled, they took part at the trial under Neither does it show service upon any persou protest. This was not such an appearance named as the service agent of a railroad as would give the justice jurisdiction over corporation, under sections 68a-68c, c. 80, the person of the railroad company." Comp. Laws 1879, or upon any person au- Ency. P. & P. vol. 18, p. 925, it is said: thorized to receive service in case of a fail- “Every provision of the statute upon which ure by a corporation to name such service the validity of such service depends should agent, or at a place designated in such sec- appear by the return to have been complied tions. For aught that appears, said March with; and if the service can be made upon may have been an agent to purchase coal, particular persons only under specified conor to transact any temporary business on be- tingencies or at a particular place, as, for half of the company, with no office or res- example, under statutes providing that sertidence in the county. The sections above re- ice cannot be had upon certain officers or ferred to provide ample and easy means for agents except in the absence of the president service upon a railroad corporation, and be- or other chief officer at the business office fore it can be adjudged in default, and sub- of the corporation, etc., the existence of such jected to a judgment upon default, the record conditions should appear when the return must affirmatively show that in some of the shows service upon any of such persons"ways named in the statute service has been citing a large list of authorities. made upon it. None such appears here, and Several other questions were presented therefore judgment was improperly rendered to the court below in the motion for a new against it." The statute referred to in this trial, and are renewed and argued in the decision was then in the same form and lan- Vrief of plaintiff in error in this court. The guage in which it now exists in sections cause is not briefed on behalf of defendant 4268–4271 of Oklahoma statute above set in error. We have therefore examined the out.

jurisdictional queston here determined, upon The same subject was again before the the determination of which the cause must Supreme Court of Kansas in the case of be remanded for further procedure in the Dickerson v. Burlington & H. R. R. Co., court below. The other questions raised by 23 Pac. 936, in the syllabus of which case the brief of plaintiff in error are important the court says: “A return upon a summons legal subjects, which may not arise on a against a railroad company that it was retrial of the case, and which, when deter'served by delivering a copy thereof, with mined. will be better determined in a cause the indorsements thereon duly certified, to where the parties thereto have sufficient inMr. Fish, agent of the within railroad com- terest therein to aid the court by at least pany,' is, of itself, no sufficient evidence of an expression of their views with reference service, as it contains no description or hint thereto. of the character of his agency.” That was For the error here determined, the judg. an action commenced before a justice of the ment of the lower court is reversed, and the peace, and after the overruling of its motion cause remanded, with direction to sustain to quash the summons the railroad company the defendant's motion to quash the summons entered a general appearance, and defended and the service thereof, the costs of this the action upon its merits, as was done in court to be taxed to the defendant in error. the case now at bar, and in reference to All the Justices concurring. this phase of the case the court in the body of the opinion, say: "It is claimed that, BURWELL, J., concurs in conclusions because the attorneys of the railroad com- | reached, but not all the reasons therefor pany subsequently took part at the trial of stated in the opinion.

(15 Wyo. 136)

The provisions of our statutes under which STATE v. THOMPSON.

this information was filed are contained in

sections 2.780, 2387, 2588, 2589, Rev. St. 1899, (Supreme Court of Wyoming. Nov. 20, 1906.)


"Sec. 2350. Eight hours shall constitute a OF LABOR-OFFENSES-OPERATION OF MIXES. Rev. St. 1899, 82586, provides that eight

day's work for all coal miners and laborers hours shall constitute a day's labor for all "coal now employed, or who may be hereafter emminers and laborers,” etc. Section 2587 de: lares ployed, in any coal mine in this state, except that the word “day,” in all contracts between any owner, lessee, or operator of any mine

in cases where it may be necessil. y to work with any such miner or laborer, shall mean eight

more than eight hours per calendar day for hours, and section 2559 declares that any ownl- the protection of property or human life: er, lessee, or operator, his or its agent, employés,

provided, that in all such cases the miner's or servants violating any of the provisions of the chapter, shall be fined, etc. Held, that the

and laborers so employed and working to exwords "employé" or "servants," used in section 'ceedi eight hours per calendar day shall be 2389, should be construed to mean employés or paid upon the basis of eight hours constitutservants of the mine owner occupying positions of "agents,” and not to include miners and

ing a day's work." laborers, so that a miner was not subject to

"Sec. 2.787. In all contracts hereafter made punishment under the penal provision for work- between any owner, lessee or operator of any ing more than eight hours a day.

coal mine, with any such miner or laborer Exceptions from District Court, Sheridan for his services as such, the word day when County; Carroll H. Parmelee, Judge.

used shall be construed to be eight hours: An information was filed against Al Thomp- provided, that nothing in this chapter conson for alleged violation of the mining-labor

tained shall be construed to prohibit or prelaw, and from an order sustaining a demur- vent any such owner, lessee or operator rer thereto, the state excepts. Under Rev. from operating his or its coal mine more St. 1899, &$ 5378, 5380. Affirmed.

than eight hours in any twenty-four."

"Sec. 2.388. The eight hours in this chalJames H. Burgess, Pros. Atty., and W. B. Mullen, Atty. Gen., for the exceptions. J. J.

ter provided for, shall be construed to mean

eight hours of actual labor and shall not inRowen, opposed,

clude the time consumed in going to and re

turning from work." BEARD, J. An information was filed in

"Sec. 2589. Any owner, lessee or operatoi, the district court of Sheridan county by the

his or its agent, employés or servants, violatcounty and prosecuting attorney against the

ing any of the provisions of this chapter. defendant, charging "that Al Thompson, late

shall be fined not less than fifty dollars, nor of the county aforesaid, on the 12th day of

more than three hundred dollars, or imMarch, A. D. 1906, at the county of Sheri

prisoned not more than three months, or dan, in the state of Wri iing, being then and

both.” there a coal miner, mining coal, and then and

The foregoing quotations contain the enthere an employé of the Wyoming Coal Min

tire statute upon the subject; and, if the ing Company, the said company being then

defendant does not come within the class of and there the owner of the Monarch coal

persons enumerated in section 2589, then it mine situated in Sheridan county, Wyoming,

is clear that the information charges no ofand engaged in mining and extracting coal from said mine, did, while in the employ of

fense. The first section of the statute enacts

that eight hours shall constitute a day's the said Wyoming Coal Mining Company,

work for all coal miners and laborers emand while mining and extracting (oal in said mine, knowingly, willfully, and unlawfully

ployed in any coal mine; but does not at. perform in said coal mine, mining coal as

tempt to fix the number of hours that shall aforesaid, on the said 12th day of March,

constitute a day's work for any other class A. D. 1906, more than eight hours of actual

of persons employed in or about the opera

tions of the mine. The second section delabor, to wit, ten hours of actual labor-the said labor or any portion of the saine not

fines the meaning of the word "day" when being then and there necessary for the protec

used in any contract made between the owiltion of property or of human life. * * *” er, lessee, or operator of a coal mine with The defendant demurred to the information

such miner or laborer for his services as on the ground "that the said information

such. It is only in contracts between the does not state facts sufficient to constitute operators of coal mines and a miner or an offense punishable by the laws of the

laborer in the mine and for his services as state of Wyoming." The district court sus

such that the word "day" is to be construed tained the demurrer, and, the county attorney to be eight hours. Thus it will be seen that

. refusing to amend and electing to stand on by those sections of the act miners and the information, the court rendered judgment iaborers are treated as a distinct class of dismissing the action and discharging the de- employés, and it is nowhere in the act defendant, to which exceptions were duly taken, clared, in terms, to be unlawful for them and the county attorney has filed a bill of to work more than 8 hours in any 24. The exceptions in this court under the provisions object of the statute, we think, was to preof sections 5378, 5379, 5380, Rev. St. 1899. veut the employers of such miners and la

87 P.-28

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